Commentary October 28, 2004

IBH President, Robert L. DuPont, M.D., along with two professional colleagues, filed an amicus
brief in the medical marijuana case to be heard November 29, 2004 by the US Supreme Court

US Supreme Court Case #03-1454: Ashcroft v. Raich

WHAT THE CASE IS ABOUT

Two individuals (and the caregivers of one of the individuals) sued to prevent the federal
government from seizing their medicinal cannabis or prosecuting them for cultivating and/or
possessing it. The individuals contended, among other things, that the prohibitions of the Controlled
Substances Act (CSA) were unconstitutional as applied to their activities because the non-
commercial, intrastate cultivation and/or possession of cannabis for personal medical use—on the
advice of a physician and in accordance with state law—does not “substantially affect” interstate
commerce. The U.S. Court of Appeals for the Ninth Circuit agreed, and the US Supreme Court has
accepted review of the ruling. The case will be argued on November 29, 2004, at 10:00 am.

THE FEDERAL GOVERNMENT’S ARGUMENT IN THIS CASE

The federal government is arguing that, under established federal court precedent, Congress
has the power to regulate intrastate activity, even when that activity is noncommercial, if the
activity—when “aggregated” with other similar activities—substantially affects interstate
commerce. The government maintains that cannabis is “fungible”—particularly since Congress has
determined that cannabis has no accepted medical use in the US (i.e., Schedule I)—and could be
sold to others, thereby potentially swelling interstate drug trafficking. They point to Congress’s
findings supporting the enactment of the CSA, which stress that the intrastate use of controlled
substances has a significant effect on interstate drug trafficking and on the health and safety of US
citizens.

OTHER AMICUS BRIEFS

Many amicus briefs have been filed in this case. For the most part, they discuss whether or
not the activity in question affects interstate drug trafficking and the use of illicit drugs. Some take
no position on the cannabis or drug abuse issue but maintain that any “noncommercial,” intrastate
activity is beyond the reach of Congress’ power to regulate.

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 THE DUPONT/BARTELS/KLEBER/BENSINGER AMICUS BRIEF

This amicus brief addresses two significant issues in this case: US treaty obligations and the
importance of our national pharmaceutical regulatory system. Unlike the laws involved in other
recent Supreme Court Commerce Clause cases, the Controlled Substances Act (CSA) is not narrow,
punitive legislation. It creates a comprehensive system which determines, not only which substances
are illegal, but how an illegal substance becomes a product with an “accepted medical use,” in
accordance with both international law and current scientific knowledge.

THE ARGUMENTS IN THIS BRIEF

The CSA is founded, not only on the Commerce Clause, but also on the United States’
international treaty obligations. The 1961 Single Convention on Narcotic Drugs, to which the US
is a signatory, requires that all nations control both international and domestic cultivation,
manufacture, possession, trade, etc., of narcotic substances. Crude herbal cannabis is contained in
the most restrictive schedules of the Single Convention. The US is thus required to impose stringent
controls on its use.

Furthermore, for a number of reasons, the “intrastate, noncommercial use” of crude herbal
cannabis for medical purposes does, indeed, affect interstate commerce—and in a very negative way.
There are a multitude of reasons why the Court of Appeals’ ruling will have a “ripple” effect that can
eviscerate the intricate fabric of the Controlled Substances Act and the Food, Drug & Cosmetic Act.
Over the last century, our federal regulatory system—rather than state law—has been the primary
source of regulation of prescription medicines and the protection of patients. Indeed, the Food, Drug,
and Cosmetic Act has become the international “gold standard” for determining the quality, safety,
and efficacy of medical products. If States allow unstructured and ungovernable systems to flourish
within their borders, this federal regulatory structure will be irreparably harmed.

The Institute for Behavior and Health, (IBH) focuses on national drug abuse policies that emphasize prevention and investment in better
treatment approaches. Established in 1978, IBH is a 501(c) 3 non-profit organization working to reduce substance abuse through the power
of good ideas.